McKnight v. Warden, Ohio State Penitentiary

Filing 275

ORDER - It is ORDERED that Petitioner supplement his Motion by filing, not later than March 18, 2018, a memorandum setting forth all facts known to Petitioner's counsel which support a claim that they acted with due diligence. Counsel are cautioned that a blanket claim of work product protection will be skeptically read. Signed by Magistrate Judge Michael R. Merz on 3/8/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
GREGORY McKNIGHT
:
Petitioner,

Case No. 2:09-cv-059
:

District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

-vsDAVID BOBBY, Warden,
:
Respondent.

ORDER FOR SUPPLEMENTAL BRIEFING
This capital habeas corpus case is before the Court on Petitioner’s Motion for Leave to
File an Amended Petition (ECF No. 271).

Teague v. Lane

Upon initial review of the Motion, the Court notes that Petitioner’s counsel rely on PeñaRodriguez v. Colorado, 137 S.Ct. 855, 197 L.Ed. 2d 107 (2017), but make no mention of Teague
v. Lane, 489 U.S. 288 (1989). Teague on its face purports to regulate the extent to which new
constitutional rulings by the Supreme Court can be applied by the lower courts to cases on
collateral review. Prima facie, Peña-Rodriquez adopts a new rule of constitutional dimension
restricting the extent to which a state rule of evidence on juror impeachment of a verdict can be
relied upon to preclude juror testimony about statements of racial bias directed at a defendant
during deliberations. Presumably the Petitioner relies on the novelty of this rule to support his

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assertion that the claims he intends to make in the amended petition are “new” or “newly
arising.”
Accordingly, it is ORDERED that Petitioner supplement his Motion by filing, not later
than March 18, 2018, a memorandum setting forth Petitioner’s position on the application of
Teague to the Motion.

Diligence

One of the factors to be considered in deciding a motion to amend is whether the motion
is brought after undue delay or with dilatory motive. Foman v. Davis, 371 U.S. 178 (1962);
Prather v. Dayton Power & Light Co., 918 F.2d 1255, 1259 (6th Cir. 1990). In support of his
position on this point, Petitioner claims there is no undue delay because he filed the Motion on
March 6, 2018, and “Pena-Rodriquez [sic] was decided March 6, 2017. McKnight’s request to
amend is brought within AEDPA’s one-year statute of limitations.” (ECF No. 271, PageID
17485 1). However, the fact that a motion to amend is filed within twenty-four hours of the
running of the statute of limitations does not in itself prove there was no undue delay involved.
Regarding delay, the Magistrate Judge needs a fuller description of what was done to
discover the facts on which the Motion is based. One juror affidavit attached to the Motion was
signed January 12, 2018 (ECF No. 271-1, PageID 17506). The Almany Affidavit, also attached,
says Mr. Almany “has been investigating various aspects of Gregory McKnight’s capital trial
since May of 2017.” Id. at PageID 17507. Almany’s Affidavit is dated March 5, 2018, the day
before filing, and gives no other particulars of his investigation. This is not sufficient detail to

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Petitioner also posits that the case “is still in it early stages.” Hardly. But for the instant Motion, the case is ripe
for decision.

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persuade the Magistrate Judge that Petitioner’s counsel acted with appropriate diligence after
Peña-Rodriquez was decided.
Accordingly, it is ORDERED that Petitioner supplement his Motion by filing, not later
than March 18, 2018, a memorandum setting forth all facts known to Petitioner’s counsel which
support a claim that they acted with due diligence. Counsel are cautioned that a blanket claim of
work product protection will be skeptically read.

March 8, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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